Sare v. Butcher

Howard, J. The appellee Jones brought an action before the appellee Brinegar as justice of the peace, seeking the collection of a debt from the appellant. The justice made a finding in favor of Jones and against appellant, but no judgment was rendered on the finding. Afterwards, the justice issued an execution on the finding and placed the same in the hands of the appellee Butcher, constable, who levied the same upon a horse of appellant’s, and was threatening to sell the horse by virtue of such execution. A complaint setting up the foregoing facts and asking that the defendants be enjoined from proceeding under such execution to sell said horse, or from attempting in any way to collect or enforce the finding made by the justice, was filed in the court below. To this complaint a demurrer, for want of facts, was sustained. The only justification of this ruling suggested by counsel for appellees is that it does not appear from the complaint that the appellant does not owe the debt sued on; and this is the only question which we consider or decide. The defense thus suggested can not be accepted as sufficient. An execution does not issue upon a debt due but upon a judgment rendered. A void judgment “may be attacked in any of the methods recognized by law, as, for instance, by a complaint for injunction or by an action to have it vacated.” Cain v. Goda, 84 Ind. 209. With more reason may an execution based upon a mere finding be enjoined. See, also, Jeffries v. McNamara, 49 Ind. 142; Needham v. Gillaspy, 49 Ind. 245. The judgment is reversed, with instructions to overrule the demurrer to the complaint.